Before the Minister moves that the first order be considered, I remind your Lordships that in the case of each order, the Motion before the Committee will be that it do report that it has considered the order in question. I make it clear that the Motion to approve the order will be moved in the Chamber in the usual way. I add as a footnote that if there is a Division in the Chamber while we are sitting, we shall adjourn for 10 minutes, but I shall give the Committee notice of that if it arises.

rose to move, That the Grand Committee do report to the House that it has considered the Housing (Tenancy Deposit Schemes) Order 2007.

The noble Baroness said: With the order, I intend to discuss the two related negative orders, the Housing (Tenancy Deposits) (Prescribed Information) Order 2007 and the Housing (Tenancy Deposits) (Specified Interest Rate) Order 2007. All the orders are designed to come into effect as part of the general implementation of the Act on 6 April. I thank noble Lords for the crucial part that they have played in effecting the changes that will shortly come into force. That has been slightly delayed—I will explain the reasons for that—but I know that we all take pride in what will be achieved now through the Housing Act 2004.

I warn that I have a slightly long speaking note, but I have received so much encouragement that I will probably have to cut it back at least a little. However, let me rehearse briefly the history of the scheme and how we have moved to put the process in place since the Act. As Members of the Committee know, great concern was expressed in relation to the Act about the bad practice of a minority of landlords and agents regarding tenants' deposits. We are all aware of cases in which deposits have been withheld. Those continuing problems were confirmed in the responses to a government consultation document, Tenancy Money: Probity and Protection, published in 2002.

I shall bring that story up to date. Last year there were about 1.7 million assured shorthold tenancies—the standard tenancy in England and Wales—to which TDP applied. A deposit was paid in 85 per cent of those tenancies, or by 1.4 million tenants. The average deposit was £700, which is a big investment. In 2003-04 and 2005-06, the Survey of English Housing showed that 17 per cent of tenants questioned felt that some or all of their deposit had been unfairly withheld. That is 246,000 deposits. If only half of those deposits averaging £700 had been unfairly withheld, that would amount to £86 million. The rented sector is expanding, and the losses could only have increased. We would all miss that sort of money, but in many cases the result has been severe hardship.

As a result of those issues, the Government decided—with cross-party agreement, and strong support by Citizens Advice, Shelter, the NUS and, in principle, the landlord and agent organisations themselves—that it was time to give statutory protection to tenants’ deposits. That decision was taken through the Housing Act via new clauses and a new Schedule 10. It is good to see so many noble Lords who were involved in that. Paragraph 11 of Schedule 10 provides for the appropriate national authority—the Secretary of State in England, and the National Assembly in Wales—to amend any part of the schedule as appropriate. We have used that power to make the order.

Before I get on to the details, I want to remind noble Lords what the Act set out to do. Under Section 212(1), the appropriate national authority must make arrangements for securing that one or more tenancy deposit schemes are available for the purpose of safeguarding deposits paid in connection with shorthold tenancies. Section 212(8) defined the shorthold tenancy. The Act made provision for two types of schemes. Paragraph 10 of Schedule 10 deals with a custodial scheme, whereby the tenant’s deposit to the landlord is handed over by the landlord to a scheme administrator and held until the end of the tenancy, at which point it is returned wholly or in part to a landlord or tenant. The second option was the insurance-based scheme, whereby the tenant’s deposit to the landlord is kept as it is now by the landlord but on the basis that, at the end of the tenancy, an amount agreed between the tenant and the landlord will be repaid to the tenant. Any amount not agreed with then be paid by the landlord into the scheme administrator’s account until the dispute is resolved. Should the landlord fail to transfer the disputed amount to the scheme, the scheme’s insurance will repay the tenant any amount of the deposit that is found to be due to him.

Paragraph 10 of Schedule 10 requires the scheme to provide facilities to enable the resolution of disputes about deposits. Section 213(3), under which a landlord receives a tenancy deposit in connection with a shorthold tenancy, requires him to comply within 14 days, beginning with the date on which he receives that deposit, with requirements imposed by an authorised scheme that fall to be complied by him. Under Section 213(5), (6) and (10), a landlord who receives such a deposit must, within 14 days beginning on the date on which he receives the deposit, give to the tenant or any person who has paid the deposit on behalf of the tenant prescribed information in an order made by the appropriate national authority.

The Act was an enabling Act, and the details were left to be worked out. Since then, those details have been determined on the basis of advice from consultants who took advice very widely on the form of the schemes. They agreed that a single national custodial scheme, accessible to all landlords and agents, should be procured, but the consensus in the lettings industry was that there was a need for one or more insurance-based schemes. The process of determining the form of the scheme and the need to consult played a key role in delaying the introduction of the scheme. We had originally planned to introduce it last July. We scheduled it for October 2006, but it also emerged that it was essential that the stakeholders in the private rented sector had enough time to prepare for the implementation of the scheme. Therefore, I decided to commence the tenancy deposit scheme on 6 April 2007—a common commencement date. It also gave us more time to put together a very effective publicity campaign, which I shall refer to later, and to reflect the concerns of landlords and agents.

Central to the success of the scheme is the provision of information to the tenant, so that they know their new rights. I shall say a little about the prescribed information order, which we are considering in relation to this order, and about the extensive consultation that we have undertaken. Clearly, the provision of that information is absolutely crucial to enabling the tenant to know how their deposit is now protected. Landlords will have to provide their tenants with full details of which scheme is being used to protect the deposit, how the scheme works, and how they should go about seeking the return of their deposit if they consider that they are entitled to it. That information must be provided within 14 days.

Some tenants are poor, some are easily intimidated, others may not speak much English, and many will be students. They all need to know their rights, so we have worked closely with Citizens Advice, Shelter, the NUS and local authorities throughout the design and implementation of the whole scheme. The result has been to limit the prescribed information to what is required to ensure the essential safeguarding of deposits and to keep the paperwork to a minimum, as well as to limit the burdens on landlords and agents to ensure compliance with the legislation. For example, we have been very clear that we need simple forms for the prescribed information and for the model tenancy. We need the scheme’s rules to be published on websites and on paper forms, which will also summarise rights under tenancy deposit law. The whole process must be as clear and as accessible as possible. Even the forms which landlords and agents will use to register their details or to apply to the alternative dispute resolution service will be clearly set out on paper and online.

Noble Lords know that once a custodial or an insurance-based scheme has been chosen, the process will be slightly different. The custodial scheme is free to all landlords and agents. It involves the landlord giving up the deposit and telling the tenants within 14 days which scheme is being used and whether the deposit will be returned at the end of the tenancy intact or divided, as agreed, between tenant and landlord. If there is a dispute, the scheme will hold the disputed amount until the dispute resolution service or the courts decide what is fair. A percentage of interest will also be returned to the person, either the landlord or tenant, who is entitled to the deposit at the end of the tenancy. The rate of interest is set out in the Housing (Tenancy Deposits) (Specified Interest Rate) Order 2007 and will be fixed at a rate equivalent to the base rate of the Bank of England, less 2.32 per cent.

The insurance-based scheme is different, in that the tenant pays the deposit to the landlord, who retains the deposit but then pays a fee to the scheme administrator to insure against his misappropriation of the deposit. Again, within 14 days of receiving a deposit, the landlord must give the tenant prescribed information about the scheme being used. At the end of the tenancy, if the landlord and tenant agree how the deposit should be divided, all or some of the deposit is returned to the tenant. If there is a dispute, the landlord must hand over the disputed amount—say, £200 out of £1,000, because he disagrees about the state of the furniture—to the insurance scheme for safekeeping until the dispute is resolved. If for any reason the landlord fails to comply, the insurance arrangements will ensure the return of the deposit, or part of it, to the tenant, if they are entitled to it.

Let us look at how the dispute resolution will work in practice. Both landlord and tenant agree to the ADR, so the disputed £200 will be transferred to the scheme. A dispute in the custodial scheme will work in a similar way, except that the money is there already; £800 will be paid to the tenant and £200 will remain in the custodial scheme until the dispute is resolved.

In each scheme, the deposit must be returned within 10 days of the landlord and tenant agreeing how the deposit should be divided, or within 10 days following notification of a decision from the ADR or court service. That is a statutory maximum; there is nothing to prevent the deposit being paid back on the last day of the tenancy agreement if the parties so decide.

I am confident that from this arrangement, which has been worked out in consultation with the key players, the majority of landlords will benefit hugely from the clarity and certainty that the schemes provide. Rather than that nagging worry about whether they will get their deposit back at the end, it will establish relationships between tenants and landlords on a more transparent and predictable footing, encouraging best practice in the private sector. But the best scheme in the world needs to protect against the non-conforming landlord or agent, so the enforcement procedures provide stiff penalties in Sections 214 and 215 of the Act against those landlords who either fail to protect their tenants’ deposits in the first place or fail to provide their tenants with details of the information about their deposits.

In those cases, a tenant can make an application to the county court if his landlord has either not protected the deposit or not provided the information within 14 days. If the court is satisfied that the landlord has not complied with the requirements of the Act, these sanctions apply. First, the landlord or agent will be unable to regain possession of the property using the usual notice-only grounds available in respect of assured shorthold tenancies, if he has either failed to protect the deposit within 14 days of receiving it, or failed to provide the prescribed information to his tenant within 14 days of receiving the deposit. Secondly, and even more severely, if the court directs a landlord or agent to pay the deposit into a scheme and he refuses, the court must order the landlord to pay the tenant three times the deposit amount. These are very serious penalties.

I move on to who is running the schemes and how they will do it. The deposit protection scheme—DPS—is the only custodial deposit protection scheme. Its parent company is Computershare Investor Services, which has successfully delivered the Australian State of Victoria's custodial tenancy deposit scheme for the past eight years and is a very reputable and considerable agency. The scheme is free to use and open to all landlords and letting agents, who will be able to register and make transactions online or on paper. It will be supported by a dedicated call centre and an independent dispute resolution service, which will be provided by the Chartered Institute of Arbitrators. The scheme is funded entirely from the interest earned from deposits held. Only in extreme circumstances would the Government need to provide any financial support. The interest on the pool of deposits will be used partly to pay the contractor for running the scheme and partly to pay interest to the tenant or landlord.

I thank the Minister for her extensive explanation, not only of the tenancy deposit scheme but of the amendments. I notice the noble Lord, Lord Rooker, in his place. He and I were dealing with the then Housing Bill, and about the only item of agreement we had, fairly late in the proceedings, was that this tenancy deposit scheme should be included. There is no dispute over the principle of the tenancy deposit scheme.

I know, and I am sure that many other noble Lords here know, both sides of the history of this. First, there were landlords who quite unreasonably sat on deposits for long periods and were extremely reluctant to return them, with endless excuses, often unjustified, as to why they should not. That caused great difficulty to tenants. Equally, however, tenants were not blameless either, because they quite often withheld portions of rent on the basis that they might not get their deposit back. We all know that this has been a long-running problem with local authorities. I understand that. I am also clear that the voluntary system set up in 2000 did not work, and that this statutory system was therefore essential.

Having said that with great accord, I have only a few questions on the processes. I do not want to delay the Committee for long; I realise that there are a lot of other orders to come. First, it is clear that the process of giving out information will be very wide and extensive. You cannot do it once; it must be ongoing. Leaflets must be available everywhere. How is it expected that that will carry on? Where will those leaflets be available?

Quite a lot of deposits are these days provided by local authorities, in support of tenants on a low income and putting statutory tenants into housing provided by registered social landlords. I was wondering what encouragement there would be from the department to ensure that local authorities also provided that information as and when they provided a deposit. At the end of the day, it is the tenant’s deposit.

As the Minister rightly said, there are two aspects to the scheme; the custodial and the insurance. Under the custodial scheme, as I understand it, a statutory declaration will be required. If no agreement can be reached, and it is going to be terminated by a statutory declaration, then the administrator will be able to hand over the deposit. One reason for this is to clear it out of court. Must the statutory declaration be taken before either a court or solicitor? Is it a legal document? A statutory declaration normally is, and would require legal intervention. Can we clarify that?

On the insurance, there is a slightly different process with two interesting areas, one where the landlord is contactable and deemed unco-operative. The process for deciding whether the landlord is contactable is to send him or her a letter, and it is deemed to have been served. But “contactable and unco-operative” might actually mean “uncontactable”. What steps will be taken to ensure that that is not the situation? The second interesting area is the landlord being uncontactable, but the Explanatory Notes blithely say that if he is not contactable no procedure can take place, because it is assumed that he ought to be able to challenge the decision. That seems topsy-turvy. If he is uncontactable, how on earth can one continue the process if he has to be around to decide whether he agrees? Where do the processes for the contactable and unco-operative and the uncontactable leave the tenant? The tenant could end up back in court when the landlord is seen to be uncontactable.

This side is also happy to support the principle and the detail of the business in front of us today. I know that my noble friend Lady Maddock, who is our housing spokesman, campaigned hard for this here and in another place. It is good to see it come to fruition.

Nowadays the general thrust is that we should avoid regulation at all costs, but this demonstrates that when industry is given an opportunity to reform and manage itself, it sometimes fails. When that happens, the state has a responsibility to step in and make life better for tenants. This has been some time in coming; it has taken almost three years to get these regulations. However, I shall not carp about that because the department has done a thorough job in consulting and in coming up with a scheme that appears to deal satisfactorily with all the concerns. From that point of view, this scheme is the opposite of one of the other great outcomes of the 2004 Act—home information packs. The proposals about them were rather rushed through and we are left with great uncertainty, with changes having to be made because the industry is not ready. This is the better of the two approaches and I wish HIPs had been dealt with in this way.

I have a couple of points of detail. Like the noble Baroness, Lady Hanham, I lost track of what will happen in insurance-based schemes when landlords are uncontactable. Paragraph 7.10 of the Explanatory Memorandum states that,

“the department considers the landlord should be given the opportunity to give his consent”.

I could not find anything else in the memorandum that would explain what would happen at the point when one really could not contact the person. It is not clear to what extent the scheme would have to try to find someone. It is very difficult to imagine a situation in which someone owning a property that they are letting out would actually disappear altogether—but then we do not know how hard the scheme would have to try to find someone. A lengthy delay in that regard would leave tenants in some difficulty, so like the noble Baroness, Lady Hanham, I should like clarification on that.

What arrangements will be made for monitoring how all this is working? From the point of view of the landlords and tenants, we clearly think that the scheme will work; but one can never be sure, so we need to keep an eye on how this is working from both points of view, particularly with regard to the relative merits of insurance versus custodial schemes. The law of unintended consequences is always alive and well, and some changes in behaviour may happen as a result of these provisions that none of us could have predicted. It is useful if trends are monitored before they become problematic. Apart from that, we are happy to support this.

As my noble friend said, this is something that I have taken an interest in for a very long time—since the days when I was a councillor in Southampton, over 20 years ago. I welcome the measure, having taken part as a Front-Bencher in the passage of the Housing Act 2004, but I have one or two comments to make. Since I gave up being on the Front Bench, I now sit on the Merits of Statutory Instruments Committee. Having been involved with primary legislation for most of my parliamentary career, it has been very interesting to follow secondary legislation in a detailed way, which I have never had the opportunity to do before—and never been forced to do, I suppose. I hope that one or two comments that I make will be helpful in that regard.

I know that this measure has taken a long time to be introduced—and having been involved with the Bill, having listened to the Minister today and having been in the Merits Committee, I recognise the huge amount of consultation that has gone on. The fact that the department has listened to that consultation and has acted is part of the reason why it has taken a long time. However, the department gets involved in a lot of this type of legislation and does a lot of consultation, and the way in which secondary legislation comes through the department is not always timely. Is that because it is not appreciated within the department how time-consuming the type of legislation that the department deals with is? Is there a need to look at whether the department has enough staff and the right staff to do this? It is clear that all sorts of things happen—and sometimes things happen because people are pressed for time, and mistakes are made. Then we find that we need to consider another statutory instrument in the committee to put right the mistake that has been made. I say that in a helpful way, based on my experience.

In addition, my noble friend asked about reviewing and monitoring how the process works. Another thing that I have discovered from looking at secondary legislation is that that is not always done. It is time-consuming—and probably one reason why the department finds it so difficult to deal with. One problem is that on the issue of housing and local government we do not very often get the opportunity to have primary legislation. The slots are rare. That means that huge Bills come through—and the 2004 parent Act was enormous. For the Minister responsible for the Bill—not the noble Baroness, Lady Andrews, who is responding today, but the noble Lord, Lord Rooker—it was a huge task to get through it, and a huge task to get through the secondary legislation. I can see that for a Minister in that department, just as it was for me when I was on the Front Bench, there is no time to check whether the measures are all coming along at the right pace. Things could be improved, despite the good consultation, by an examination of how the department looks at secondary legislation, and whether there are enough people to do what I recognise is an enormous task.

I am grateful to noble Lords for that warm reception. I particularly pay tribute to the role of the noble Baroness, Lady Maddock, throughout the process. It is amazing that, however long one speaks, there is always something to ask and holes discovered in the process. I shall do my best to answer those questions.

Publicity is important. We have done our best to use all the technologies at our disposal, which can be updated. We have a full range of leaflets, all downloadable from the website. Of course, we can keep them updated and people can order them as they wish. We have a telephone line to order leaflets, and I have talked about the radio. After the scheme commencement, all three service providers have a budget for ongoing publicity and marketing, and each has a dedicated call centre. We have spent over £1 million on publicity, within the budget allocated for setting up the schemes. There are a number of different bits of information on, for example, www.direct.gov.uk/tenancydeposit.

The noble Baroness is quite right about the statutory declaration. It must be taken before a court or solicitor. The scheme administrators will be supplying the necessary guidance and documentation to assist anyone who wants to make a declaration. We are intent on it being an honest declaration, so we must watch that process as closely as possible.

On the contactable but unwilling landlord, the scheme requires reasonable efforts to contact the landlord. There is obviously a limit to what we can do—we find this in many parts of legislation requiring this sort of thing—such as writing to them at the last known address, or the address registered with the scheme, and supplementing that by e-mail and telephone contact. One idea is that the scheme will encourage landlords and tenants to stay in contact with each other, ensuring that they know where each other is. Indeed, if the landlord is not contactable for any reason, the scheme should also know for what periods the landlord might not be contactable, and the tenant can provide that.

If the landlord is uncontactable in the insurance-based scheme, then I am afraid that the tenant will have to go to court. That is one reason we have the single-claim arrangement so explicitly worked out. In the custodial scheme, the tenant can also get the deposit back through the single-claims process.

The noble Baroness, Lady Hanham, raised the question of moving deposits. The custodial scheme is, of course, the catch-all scheme. If one insurance scheme becomes unwilling to offer protection, and the other is likely to decline under those circumstances, the landlord would have to lodge the deposit in the custodial scheme. If he fails to do so, the penalties I have described kick in. The tenant will have to apply to the court, and the deposit then paid will be three times the size of the original deposit; there is an incentive for the landlord simply to use the custodial scheme.

On monitoring, the schemes have obviously been set up to be governed by robust contractual arrangements, setting out key performance indicators to deal with the number, quality and so on of the arrangements. That is the most effective thing we can do on monitoring. Through those contractual arrangements, we will have a tight reign on the scheme providers and be able to follow exactly what is being achieved on a regular basis. That will be a very close working relationship where we can check what they are doing against delivery and performance targets, and there are penalties for those who fall below the standards.

I think that I have answered all the points. I take the point about the seriousness of consultation and the need for resources and capacity to deal with it. The department is aware of the technical administration of legislation and we do our best, although we do not always have resources to put into the things that we would like to.

On Question, Motion agreed to.

rose to move, That the Grand Committee do report to the House that it has considered the Docking of Working Dogs’ Tails (England) Regulations 2007.

The noble Lord said: I am pleased to speak on three sets of regulations—the first relates to animal welfare—in one speech. Obviously, I will be happy to reply to separate points. The regulations are a key part of the implementation of the Animal Welfare Act 2006, the bulk of which will come into force on 6 April 2007. The Mutilations (Permitted Procedures) (England) Regulations consolidate existing legislation relating to the mutilation of animals, by which I mean the carrying out of a procedure that involves interference with sensitive tissues or the bone structure of the animal.

The Animal Welfare Act 2006—

Forgive me for seeking clarity. Will the Minister speak to all three regulations together? We assumed that they would be spoken to in the order in which they appear on the Order Paper.

No. I will make one speech covering all three regulations. I will obviously be happy to reply to them separately.

But—

I will give way. I arrive here as a humble servant of the House. I am here only because the Committee wishes it and I will do whatever is required. But my speech groups the regulations together. We can discuss them and I will be more than happy to answer questions on each separately.

It might help the Committee if I say that I am going to object to the Docking of Working Dogs’ Tails (England) Regulations, and it might be better if we took that one separately.

I am happy to answer them separately, but this speech is one speech. I cannot tear out a page, although I can find the relevant paragraph, which might be in the middle of a page.

Perhaps we can have an assurance that they will be called separately at the end rather than en bloc.

Yes, without a doubt. All I am moving is that the Committee report that it has considered the Docking of Working Dogs’ Tails (England) Regulations, so we should consider that. It is one piece of legislation, but naturally I have one speech to cover all three sets of regulations, which will then be moved separately at the end when the Committee has considered them—or has not considered them, as the case may be. It so happens that my first page refers to the second set of regulations on the list, but I have moved the first one that we are considering.

The Animal Welfare Act 2006 prohibits all mutilations of animals other than for medical treatment, subject to exceptions that may be specified in the regulations. It is the latter permission that the Government are exercising here. It is commonly agreed that certain mutilations are necessary for an animal’s long-term welfare or management benefit, whether for reproduction control and identification or better management, leading to improved welfare. In addition, some forms of mutilation, for example the ear tagging of certain animals for identification purposes, are required by law—not just UK law, but European law.

The procedures that are permitted are set out in Schedule 1, with conditions attached to their use, such as the use of an anaesthetic or the maximum or minimum age at which the procedure can be performed, as set out in Schedules 2 to 9. In addition, Regulation 3 provides that the procedure must be carried out,

“in such a way as to minimise the pain and suffering … in hygienic conditions; and … in accordance with good practice”.

Those safeguards provide more generally for all kinds of cases that may arise. Regulation 4 exempts any procedure that is carried out in an emergency, to relieve pain or to save life. However, the person carrying out that procedure is still obliged to comply with the requirements in Regulation 3 as far as is reasonably possible.

In deciding which mutilation should be permitted, we have largely repeated those permitted under existing legislation. As I said, this is largely a consolidation measure. We have also consulted widely on any other procedures that should or should not be allowed. We believe that the status quo has been replicated in most cases. However, unlike present legislation in which certain procedures are banned, the new regulations also ban outdated and unacceptable practices not specifically outlawed at present. Indeed, we identified 20 practices that are not currently subject to legislation, but which are no longer generally considered justifiable on animal welfare grounds. They will no longer be permitted. They include procedures such as applying corrosive acids to the skin, de-voicing cockerels, ear-cropping dogs and drilling tortoises’ shells.

The Mutilations (Permitted Procedures) (England) Regulations are accompanied by the Welfare of Animals (Miscellaneous Revocations) (England) Regulations 2007, which revoke current legislative provision relating to certain mutilations of farmed animals, which are now replaced by the mutilations regulations.

The Docking of Working Dogs’ Tails (England) Regulations supply the necessary mechanisms by which the principle of the limited tail docking of dogs agreed by the House of Commons last March may have effect. I am sure that Members of the Committee will remember that that issue was particularly contentious during the passage of the Bill—of course, before I joined Defra—and that the Government’s view was that it was right to let Parliament decide the issue. There was a thorough debate, and all the main parties allowed MPs a free vote in which a ban on tail docking, with exemptions for working dogs, was the preferred outcome. The docking of dogs’ tails for cosmetic purposes is therefore banned.

That exemption for working dogs agreed by Parliament allows a dog that is likely to be used for certain specified types of work to have its tail docked by a veterinary surgeon. The dog will have to be no more than five days old at the time of docking, and the veterinary surgeon will have to certify that he or she has seen evidence, specified in the regulations, that the dog is likely to work in one of the few permitted areas—law enforcement, activities of Her Majesty’s Armed Forces, emergency rescue, lawful pest control or the lawful shooting of animals. The vet’s decision whether or not to dock is discretionary. This legislation does not require a vet to dock an eligible dog’s tail. Veterinary surgeons will continue to be permitted to dock the tail of a dog at any age for the purposes of its medical treatment. To ensure that only dogs are docked that are genuinely likely to work undocked, the regulations detail how those dogs will be identified and certificated.

Regulation 3 outlines the evidence that the vet must see to certify the dog as a working dog. He must reasonably believe that the dog is no more than five days old and he must see the dam of the dog. Another piece of evidence required relates to the work that the dog is intended for, such as Armed Forces identification, emergency rescue identification, police identification, Prison Service identification or Her Majesty’s Revenue and Customs identification. Evidence that the dog will be used for pest control would be provided by a shotgun or firearm certification, or by a letter from a person involved in sport shooting—this is outlined in the detail of the regulations—that the dog is likely to be used for that purpose.

In addition, Regulation 3 in Schedule 1 provides that the dog can only be of a certain type, such as a spaniel, a terrier or a hunt-point-retrieve breed. Regulation 4 outlines how a docked dog must subsequently be identified. That must be done by microchip before the dog is three months old. We expect that in most cases the docking and microchipping will be done at the same time. However, vets were concerned during the consultation that the size of the puppy at less than five days old could mean that it is not always suitable to microchip at that time. Therefore, it was felt best to leave that to the discretion of the vet and provide him or her with the ability to microchip the dog later when it was more appropriate to do so. Microchipping is a known and effective identification tool and is already compulsory for dogs with pet passports.

Schedule 2 details the form of the certificate which the owner of the dog, or the owner’s representative and the veterinary surgeon, will both sign. We are working closely with the Royal College of Veterinary Surgeons to produce the certificate before the regulations come into force.

I am pleased to speak to the regulations in Committee. As I said, they are a crucial part of the implementation of the Animal Welfare Act of last year, and are a significant part of animal welfare legislation overall. I shall be more than happy to respond to the points made, and will move each statutory instrument separately in accordance with normal procedure. I beg to move.

Moved, That the Grand Committee do report to the House that it has considered the Docking of Working Dogs’ Tails (England) Regulations 2007. 9th Report from the Statutory Instruments Committee.—(Lord Rooker.)

I declare my interest as an honorary associate of both the Royal College of Veterinary Surgeons and the British Veterinary Association. I have been, but am not currently, an owner of working dogs. I am speaking only to the Docking of Working Dogs’ Tails (England) Regulations 2007.

The Minister cannot but be aware of the enormous reservations held by the Royal College of Veterinary Surgeons, the RSPCA, the Kennel Club and many others to the continued permitting of tail docking for specified types of dogs, generally called working dogs. It is of passing interest to recall why working dogs’ tails were docked in the first place. It was not on welfare grounds, as is so frequently cited; it was because one of the 17th or 18th century kings—I cannot recall who—finding himself a little short of cash to pursue his wars or his pleasures, decided to impose a tax on pet dogs. To distinguish taxpaying pet dogs from non-taxpaying working dogs, the tails of the latter were docked.

Most of the objections to this statutory instrument are on grounds of policy, but a possible drafting defect has been brought to my attention by the royal college. Regulation 3(1) is not in accordance with Section 6 of the Animal Welfare Act 2006. Section 6(5) provides for the veterinary surgeon to certify that certain evidence has been produced to show that the dog is likely to work, and Section 6(6) requires the vet to certify that the dog is a prescribed type. By contrast, Regulation 3(l) calls on the veterinary surgeon to certify that evidence has been produced not only of the dog’s future employment, but of its type. This is a question of drafting.

On matters that relate rather more to policy than to drafting, relevant identification must be produced for dogs that are meant to be used for work by the Armed Forces, the emergency rescue service, the police, the Prison Service or HMRC. Regulation 2 says that such identification must show that the person producing it belongs to a relevant organisation. There is, however, nothing in the regulations to connect that person with the dog or its owner. Therefore, a person who wants a dog’s tail docked needs only to persuade a friendly soldier, police officer, or whomever to go with him to see the veterinary surgeon and produce identification.

The regulations omit to say that the person producing the identification must also be the person asking for the dog’s tail to be docked. Neither the veterinary surgeon nor the client has to specify what kind of work the dog is expected to do, or what kind of evidence must be produced. This will create an unnecessary obstacle to enforcement. Although the evidence produced would show that it would be for work, it would do nothing to substantiate in what capacity. Evidence might link it to relevant organisations, but not show its role within them. There is no specification as to what evidence a dog destined for pest control would need. The certificate which the veterinary surgeon and the client are required to sign should make it clear what the story is in order to make it possible for the police, or the Royal College of Veterinary Surgeons in its disciplinary capacity, to make a clear-cut decision as to whether there is evidence of bad faith. This lacuna is easily remedied by requiring the veterinary surgeon to indicate what evidence has been produced and the client to specify the activity for which the dog is expected to be used.

May I assist the Committee? I understand that the noble Countess wants to object formally to the regulations when we decide whether to report to the House that we have considered them. That situation has never occurred before in this form in a Committee. This means that, because it is impossible to have a Division in here, we will not be able, in the light of an objection, to report to the House that we have considered them. There needs to be a discussion outside the Committee on the way forward, because we have not had this difficulty before. It would be superfluous to have the debate today knowing that we are not going anywhere until we have sorted out the procedure.

Having heard what I said, if the noble Lord, Lord Rooker, wishes to withdraw his draft instrument, perhaps he could let us know. If not, we can go on with the debate and decide what do to then.

The last thing I am in favour of is wasting Parliament’s time. I am in favour of doing everything that needs doing once, and I am not in favour of doing it twice. It is clear to me and my officials that we will have to do the job twice by going back to the House. Noble Lords are busy people. Grand Committee only works by consensus. That is their point, otherwise we would be on the Floor of the House in the first place. It makes a mockery of Grand Committee to carry on for a couple of hours to consider this issue when the usual channels have made quite clear to me that we would be wasting our time. Therefore, I shall seek leave to pull all three sets of regulations. I am not going to mess about with one because they are a package. Having considered the matter, we will come back at a later date, obviously not in Grand Committee. This will have to go to the Floor of the House.

The noble Countess, Lady Mar, read out quite a number of examples of where she thought there was faulty drafting. I am not sure that I can follow her worry about people getting a friendly policeman to certify a dog, because the regulations state,

“where the dog is presented for certification on behalf of a police authority, police identification”.

All these clauses refer directly to the official body that has to present the animal. There may be other points that she was not happy with.

That was a minor point. The major point is the drafting error.

The Minister’s speech raised a number of issues and some of us have some brief questions to put to him. I am all for not wasting parliamentary time, but if he is able to briefly answer the questions while we are here, it might speed up the process next time.

I advise Members of the Committee that if we allowed certain noble Lords to raise issues it would then be grossly unfair not to allow the noble Baronesses, Lady Byford and Lady Fookes, the noble Lord, Lord Soulsby, and other noble Lords to do so. Knowing how tense and emotional people on all sides of this argument feel, I ask the noble Viscount not to press the matter now. I am sure my noble friend is willing to answer factual and technical questions between now and when the regulations go into the Chamber—I assume there is a procedure for them to go into the Chamber, and I am getting a nod from the Clerk. It would be better if we were to allow the Minister to withdraw the Motion now. It is either that or at least two hours of discussion that will end with him withdrawing it.

I accept that suggestion, and I wonder whether the Minister and his team will arrange a day for us to get together and sort out the nitty-gritty. That would help the Committee enormously. I do not think there are any objections to the other two sets of regulations, and I do not know whether it is possible to take them to save time, but it is for the Minister to decide.

I have not heard any voices on the other two sets of regulations.

We have not had a chance.

That is the point. I do not want to pull one of the sets of regulations. It would be unfair for me to assume that there is unanimity on the other two sets of regulations because they are part of a package, and no one has had the opportunity to debate the package. This is going to cause difficulty with the timescale, but that is the Government’s problem, not the Committee’s.

Let us be clear about this. There will have to be a speedy consultation and discussion through the usual channels about the use of the Floor of the House anyway. If we do not meet the implementation time, we do not meet it. That is the reality. It is the Government who are in the dock, if I can put it that way. The fact is that I have usually turned up in Grand Committee when I have been told that there is consensus and to answer all the questions. I go to the Floor. Occasionally we have a vote; in my experience of the past few years, we have had one vote. Therefore, the Committee will not report that it has considered the regulations, and I formally move that we withdraw them.

Motion, by leave, withdrawn.

rose to move, That the Grand Committee do report to the House that it has considered the Decommissioning of Fishing Vessels Scheme 2007.

The noble Lord said: This is an important issue on an industry that is of great importance to coastal communities. I have come armed with a long and a short speech. In view of what has just happened, and because this is very important for the communities concerned, I will read the short speech but use the information in the long version for any questions that might arise, which would be more appropriate.

The statutory instrument allows us to set up a decommissioning scheme for vessels of more than 10 metres operating in the western channel sole fishery—area VIIe. The statutory instrument covers the criteria that fishermen and fishing vessels must meet to be eligible for decommissioning; namely, details of how they apply for a decommissioning grant, details of how we award a decommissioning grant and details of what successful applicants must do once they have been offered a decommissioning grant.

The Government have rejected a general decommissioning scheme open to all vessels more than 10 metres long because previous schemes have not proved effective in reducing fleet capacity or good value in terms of good conservation. Repeated decommissioning schemes create an expectation which delays fishermen making assessments on whether to remain in the industry.

We believe that there is a case for introducing a decommissioning scheme for beam trawlers in the western channel sole fishery. The scheme will let vessel owners make an assessment on whether they remain in the fishery, diversify or leave the industry. They will be able to get a long-term view of prospects for the fishery under the terms of the plan.

Scientific evidence shows stock here is at or near an historically low level. I fully understand that fishermen do not always agree with scientists. I have not had responsibilities in England for this, but I did during the brief period I was in Northern Ireland. Nevertheless, the UK has been negotiating a long-term management plan with the European Commission because of low stock levels. We want the levels to be sustainable for those vessels remaining in the industry. Running a small, targeted decommissioning scheme for beam trawlers in the area covered by the management plan is most likely to offer value for money and success for the conservation of the stock.

We will keep the basic eligibility criteria that have applied for previous schemes. The vessel must be at least 10 metres in length, at least 10 years old and registered as a fishing vessel in the United Kingdom. It must be currently licensed and that licence must show it is administered at an English port. The vessel must have fished for at least 75 days in each of the two periods of 12 months immediately preceding the date of application for the scheme. Vessels must also be allowed to spend days fishing for sole in the western channel to qualify.

I am grateful to the Minister for the way in which he has introduced this scheme, and for explaining it to the Committee in detail. We support the scheme, but I shall raise one or two questions.

All of us wish to see the conservation of our sole fish stocks. If we can in some way protect it better than the cod stocks were protected at the time, it must be for the benefit of the industry as a whole. The Minister told us that £5 million had been put on one side, likely to cover the cost of some 12 boats in total. Out of interest, that is 12 out of how many? I do not know how many other boats are involved. We are pleased that the Government have raised the payments by 16 per cent.

The Minister spoke about the communities involved. I reinforce what he said: it is a dangerous and precarious occupation. From the briefing that came with the statutory instrument, I gather that this applies to those fishermen who would be able to seek grants from Sussex, Devon and Cornwall. I do not think that there was anywhere else; again, I seek clarification.

The statutory instrument rightly says that the licence must show that the vessel is administered in an English port. Are any foreign vessels registered as such, which would therefore qualify, or is this all to do only with English fisherman and their boats? It is not totally clear; I may have misread it slightly, but I desperately try not to.

On the grants being paid and the vessel decommissioned, is it also written in—again, I could not see it—that once that owner has received the money, that money cannot be used to upgrade another existing fishing vessel? Certainly, there has been a worry in some of the decommissioning discussions we have had in the past that when the Spanish fleet in particular received their money, they invested heavily in upgrading the existing fishing vessels, meaning that they could land greater quantities of sole than they could have done in the previous vessels. I am not suggesting that this applies to the Spanish fleet, but has that been taken into consideration in relation to the scheme?

I would be glad if the Minister could give me more specific information about paragraph 4(6) on awarding a grant, which says:

“He must allocate the grant to the vessels that rank highest”.

Can he clarify how vessels rank highest? Are boats that catch the largest amount of fish ranked the highest? I am not sure how that works. The sub-paragraph continues,

“giving each grant in full until there is not enough money left in the scheme to pay any more bids in full”.

I therefore presume that there is that ceiling of £5 million, to which the Minister referred. However, there could well be more bids that went beyond that amount. Again, I would be grateful for any clarification.

The Explanatory Memorandum sets out the various impacts and options, and mentions the decommissioning of 10-metre vessels on the final page. Option 2 may have been considered and got lost in the wash in the scheme as it is. Under “Benefits to vessel owners”, option 2 says:

“Any vessel owner in receipt of decommissioning grant, irrespective of the option taken will benefit from receiving the grant money, and retain the economic value of the Fixed Quota Allocations previously attached to their vessel, which can either be leased or sold”.

Does that apply under the scheme, or is it just one of the options that were considered? If those stocks were increased and became much more sustainable, the restrictions placed on the amount of fish that can currently be caught might well be lifted. However, it is not very clear in the order. Presumably if the owner is still allowed to keep his quota, he—or she—might decide to keep it for himself in the future, or he might decide to regard that quota allocation as a tradable commodity. Again, I am not quite clear on that. Those are my questions about the scheme; the Minister has been very clear about the other issues.

I, too, thank the Minister for his very clear explanation of the scheme. I also thank the noble Baroness, Lady Byford, for asking her questions, as I do not have to ask some of them now. I certainly look forward to the answers to them. Decommissioning fishing vessels is never a happy process; nor is seeing boats with a long association with particular families and particular communities coming into port and being broken up, as the Minister rightly said. However, we are where we are and, like the noble Baroness, we support this small, tightly targeted scheme—I think those were the Minister’s words—to deal with this particular problem.

I have one question about the long-term management plan for sole in area VIIe, to which the Minister referred. Can he tell us whether it has now been approved at the European level by the Fisheries Council, or is it expected to be in the near future?

I want to follow up a point made by the noble Baroness about the number of applicants and how they will be chosen. Like her, I am not very clear exactly how that is going to be done. The Minister suggests that 12 out of about 60 boats will be involved in total, which is one-fifth of them. The very useful regulatory impact assessment that we have provided refers to the four options for choosing and suggests that option 4 is the preferred option. However, I am not clear whether option 4 is written into the option or whether it merely implies that that option and all the others are still on the table.

Option 1 is to do nothing. Options 2 and 3 are fairly simple—perhaps too simple—whereas the RIA says of option 4 that vessels will be,

“ranked in order using a system that takes into account the tonnage of the vessel, its fishing effort and catches of sole in Area VIIe in a continuous 12 month period in the two years immediately preceding the date of application, and the amount bid per tonne of capacity to be removed”.

There are at least three criteria there: one is the tonnage of the vessel, one is its fishing effort and its catches in the past two years—perhaps that is two criteria—and the amount bid per tonne of capacity. I am not quite sure how those would be judged against each other and ranked if there are more applications for decommissioning than can be paid for by £5 million. This is an important point, and I should be grateful to hear what the Minister has to say.

In relation to that, does the Minister, Defra or anyone else have an estimate of how many applications there will be? Is it thought that 10 or 12 vessels will be the level, or that it might be difficult to get to that level and that it might be more likely to be 20 or 25, in which case choices will have to be made? These are important questions on the practicality of how the measure will work in practice; but, having said that, we support the measure.

As the Minister reminded us, this is a small and well-targeted scheme. It is salutary to remember that previous decommissioning schemes have not always worked out as well as we would have hoped. Originally, those who offered ships for decommissioning did so when they had a ship that was no longer very effective, although I think that this scheme will avoid that. As my noble friend Lady Byford hinted, there was the danger that money that was received for decommissioning simply went to increase effort in replacement ships. It would be helpful if the Minister gave some assurance that that will not happen in this case.

The other factor that has to be taken into account to determine whether effort will indeed be reduced—which is, after all, the object of the exercise—is that some attempt must be made to quantify illegal fishing. It is a fact of life and happens in every fishery, not only in our own waters; it happens throughout the European Union and in other fisheries around the world. So to quantify how successful the decommissioning is in determining that the take has been reduced, someone must make some calculation about the quantity of illegal fishing at present and whether it is increasing or decreasing.

The ultimate aim is to manage each fishery and area effectively. That is part of a long-term management plan. As I understand the Minister, the decommissioning proposals will not be implemented if the long-term management plans for this area are not agreed. This plan must be welcomed, because all sectors are now involved in preparing these plans, which is highly important if they are to be effective. Can the Minister assure us that they will be in place by the appointed date, which I understand to be April?

I am most grateful for the response and I shall do my best to answer the detailed questions. The central issue is the long-term plan, on which the noble Earl has just finished speaking. The noble Baroness raised that issue, too. Approval is expected at the April session of the Fisheries Council. It has been informally approved; in other words, it has been agreed by the Commission of member states, so there is every expectation that it will be in place. All the vessels are English-registered vessels. I cannot say who owns them, but they are English registered.

The noble Baroness asked a question that was almost answered by the noble Lord, Lord Greaves. Some 60 vessels are engaged, so the figure of 12 is out of that total. I said that up to 12 vessels would be engaged. We cannot be precise about this. We expect the number to be somewhat less than 12, because we have had considerable discussions with the industry, so there will probably be only about eight or nine. These vessels work out of Plymouth and Brixham, the two ports that are centrally affected.

Noble Lords referred to what has happened in the past. There have been general decommissioning schemes, but our evidence is that they have not quite delivered. Indeed, sometimes they have delivered almost the opposite of what was intended. That cannot be good for fish stocks or for public money. As for some of the details, there must be a way of ranking. We have agreed with the Commission to pay more than the current EU maximum to reflect market values. We will accept bids of up to £3,500 a tonne. Based on the average tonnage of vessels in this sector—93 tonnes—a successful bid of £3,500 would generate an average cost of £325,000. The top vessel in the fleet is 373 tonnes, so if a successful bid involved such vessels, it would generate more than £1.3 million, which is a large percentage of the money available.

There is a requirement on this, as I mentioned earlier. The vessels must have been there for a particular number of days for the past two periods of 12 months. The intention is that we get better value for money than from a general decommissioning scheme, because if we did not aim for the recovery of the stock, it would not be effective. By using a vessel-ranking system that takes into account the value of the bid per tonne of capacity to be removed, the fishing effort and the amount of sole caught in area VIIe during the reference period, we believe that we can remove from the fleet those vessels that have a greater impact on sole stocks in area VIIe, therefore supporting the new long-term management plan for the area. I fully accept that there is a considerable number of vessels under 10 metres that fish. We simply do not have knowledge and information about those, and we would be spending money on vessels that spend only a very limited amount of time at sea.

The noble Earl raised the issue of illegal fishing. I do not have chapter and verse on this, but I understand that there has been a big improvement in enforcement with regard to illegal fishing. It is believed that one consequence of that is the hardening of fish prices, which has been of considerable assistance to the industry. Apparently, people have seen a direct connection between improvements in enforcement and a hardening of fish prices, which has to be good for those who are operating legally.

The long-term management plan is being carried out in conjunction with the Commission and, of course, France. It has been negotiated for a while; we want a sustainable fishing industry in this part of the channel. The plan envisages a six-year period in which to bring the stocks back to a sustainable level, which should allow vessels remaining in the fishery a sustainable future. The quota would remain, so that when the stocks return to their levels, the quota is still available, having removed that capacity in the mean time. One does not want to chuck the baby out with the bathwater.

On option 4, the system ranking the bids will take into account the tonnage, the catch of sole and the effort in the fishing. A formula that calculates a ranking position will be made available to applicants. This will not be done in secret; they will know beforehand what they are doing. The formula puts a weighting on each of the criteria: 50 per cent on the tonnage and 25 per cent each on the catch and the effort. The figure arising from the calculation is then divided by the bid per tonne of the vessel, which gives a final ranking figure that could be made available to Members of the Committee.

The whole point about this is that the person making the bid has to know whether to make an economic, family or business decision to leave fishing, so they have to know what money is going to come back. This is therefore not a question of someone putting in a blind, sealed bid and then asking for the money; the person making the bid must know whether it is a viable business decision. After our discussions with the industry, we have said that the measure would involve up to 12 out of the 60 vessels, but our expectation is that it will be about eight or nine of the vessels. Because I do not have that information, I cannot give details of whether those vessels will be predominantly larger, more medium-sized or smaller, but if the average tonnage is 93 and there is a vessel of 373 tonnes, by definition there will be some smaller ones. That is a business decision for the fishing fleet to take.

Will the formula used to calculate the ranking be provided to people before they bid?

Yes, it has to be transparent. When the money runs out, that is the end. There is a limit on the finance of £5 million. Moreover, the scheme is not completely a UK one; there is European Union involvement with the management plan and everything else. The formula will be known, and they will know the tonnage of the vessel, how many days they have been at sea and what the catch has been. They have to meet the target of 75 days at sea in each of the two 12-month periods beforehand. So it is not a question of being able to manipulate the figures; the figures have to be up front. In other words, although it might be thought inappropriate, these are people involved in serious fishing. Even with the restrictions on the number of days allowed out, 75 days is serious fishing. Those people will know that if they have gone out on 150 days in one year and on no days in another year, they will not get in. All that is known up front, and, if successful, they will know to a fairly accurate degree how much money they will receive for the decommissioning bid.

I think that I have covered everything on my list of questions. If I have not, I shall stand corrected, and I will see whether I can get further information.

I should like a little clarification. Paragraph 5 on page 2 says:

“A successful applicant for a grant must … destroy the vessel to the satisfaction of the Secretary of State”.

Does that mean that the vessel must be totally destroyed and blown up? That seems the most appalling waste and destruction. Could the vessel not be converted for a different use?

No, it is a fishing vessel. It has been decommissioned from fishing and is therefore scrap. They will not be paid the decommissioning grant until the vessel is scrapped. It is not possible to do it any other way. That is the normal procedure with the decommissioning plans for the fishing fleet, and part of the EU rules. It also makes common sense.

On Question, Motion agreed to.

rose to move, That the Grand Committee do report to the House that it has considered the Producer Responsibility Obligations (Packaging Waste) Regulations 2007.

The noble Lord said: Again, I have a short and a long speech. For the convenience of the Committee, I shall use the short one. We are meeting here to debate regulations which make a number of technical changes, including amending some references in the 2005 regulations to reflect the original policy intention, as well as changes to allow for the electronic submission of data and the issuing of packaging waste recovery notes and packaging waste export recovery notes. An online system, the national packaging waste database, has been set up to provide an electronic system alongside the paper-based system, providing a more efficient way of doing business. The regulations before the Committee also contain other technical changes, including a proposal to change the criteria requiring an operational plan to be submitted by individually registered businesses.

Under the new rules, only businesses with an obligation of more than 500 tonnes must provide a plan. Fewer businesses—only 100—will therefore need to submit an operational plan. The proposals bring a further change that affects exporters, giving environment agencies the power to refuse accreditation to exporters who have committed, for example, Transfrontier Shipment of Waste Regulations offences. The new conditions of accreditation will include a specific reference to compliance with the trans-frontier shipment requirements.

In addition, where material is exported for reprocessing overseas, the end destination reprocessor will have to be identified by the exporter, not just by the interim recipient. That is necessary for the exporter to comply with the packaging waste directive requirement that overseas recovery and/or recycling operations can count towards targets only if undertaken in conditions broadly equivalent to those in the EU. I have recently answered several questions on this in your Lordships’ House. It is not possible to export any waste for landfill; that is quite illegal. It is a question of recycling and recovery, and we must know what is going to happen at the end.

Subject to the House’s approval, the regulations will come into effect in the middle of this month. It is a pat on the back for industry that UK packaging waste recovery has risen by 29 percentage points—from 30 to 59 per cent—between 1997 and 2005. Recycling rose to 54 per cent, from around half that figure some 10 years ago.

The proposed changes, supported by a formal consultation last year, will, if adopted by the House, approve accessibility for stakeholders through electronic means, and give us greater confidence in the regulations’ ability to deliver the directive’s recovery and recycling targets which the United Kingdom must meet by 2008. I beg to move.

Moved, That the Grand Committee do report to the House that it has considered the Producer Responsibility Obligations (Packaging Waste) Regulations 2007. 9th Report from the Statutory Instruments Committee.—(Lord Rooker.)

I am pleased to speak on these regulations. I am afraid that I only have one speech on this subject; it is a little long, but I promise to be shorter on the next subject.

The regulations make changes to the producer-responsibility obligations, which are welcome. I particularly welcome the reduction of bureaucracy in the sense that a large number of people will no longer have to file a plan. I can speak to the regulations with some knowledge. Indeed, I have to declare an interest; my family bulb-growing, packing and distribution business is a registered producer and we are members of Valpak, an agency set up for the purposes of these regulations.

Speaking from that experience, I would say that generally the system works well. However, it is complex, and without the investment that we have made in creating a whole section of our IT programme to deal with it, we would find it almost impossible to monitor. Even as a medium-sized business, we have 2,500 product items, all with their own packaging formulations, with a very large number of many-to-many situations. These all require monitoring through the purchasing, packing and distribution process. We also need to pass on information to some of our customers to enable them to file their own obligations.

Even with the support of IT, two senior managers spent two weeks collating the data for filing with Valpak. When we talk about reducing the administrative burden and reducing bureaucracy, the regulations are a classic illustration of what it means to be in business today. The measure is well intentioned, properly directed and effective, but it is still one of those things that government send to test us. It is therefore important to bear in mind the impact of these regulations on business life. It is equally important that they are implemented with fairness and sensitivity.

On the first point, I am not sure that all who might be under an obligation are being properly investigated and audited. Perhaps the Minister can tell us how satisfied he is on that point. He might also tell us how many man days it takes to do one audit, and how many man days of the Environment Agency’s officials are dedicated to that work.

We note the inclusion of producers registered overseas who will now come within the scope of the regulations in respect of their UK operations. At the same time, I wonder how strong a grip the Government have on the internet sale of waste to third countries, particularly plastic waste. What checks have we to ensure that waste exported to overseas sites conforms with the EU directive on those sites? Who does the checking?

I shall continue with some personal observations. We can recycle cardboard and paper quite easily, even though the plant is 20 miles away. We have both baling and shredding facilities, but plastic, particularly if it is dirty, is very difficult to dispose of as no one wants it. We also find some matters of definition difficult. The plant-pot issue is resolved, but we have curious anomalies in display stands, which are excluded, but which are included if the bin, crate or box is used to transport goods, as well as display them.

As I said, the system in the main achieves its objectives. We are given incentives to reduce waste, to recycle what we can and to think carefully about packaging decisions. We accept that the changes that the regulations bring about are designed to make the system work better. We welcome the consultation with the advisory committee on packaging throughout the process.

I turn briefly to the text of the regulations as there are a few anomalies, which I hope the Minister can explain. The sum of “£5,000,000” is mentioned at the bottom of page 7. We all know that there is a de minimis of £2 million on this programme. Why is that not included in the regulations at that point? It is referred to later, on page 31, where the threshold is described, but I am surprised that the £2 million is not included in the opening general comments of the regulations.

On page 17, one finds the same situation under Regulation 16(4)(a) where, again, there is no mention of the £2 million. Sub-paragraph (b) says,

“and, in addition to the fee payable under sub-paragraph (a) or (b)”,

but I cannot understand the relevance of “or” in that statement, because sub-paragraph (a) is totally different from what this power seems to be looking at.

I also find unusual the absence in the regulation, as opposed to the covering literature, of any reference to electronic inputting. There are references to forms as approved by the Secretary of State, so there are words about the forms. But I am surprised that, as far as I can see, the regulation does not refer specifically to electronic inputting, which obviously will be a great advantage. It may help in the prevention of fraud if PRNs, for example, are issued electronically. I welcome the proposal, but I am not sure where it exists in the regulations.

I might have misread Regulation 36, entitled “Collation and provision of information”, but paragraph (1) states:

“The appropriate Agency shall collate and place in the common database every report provided to it under paragraph 1(n) of Schedule 5”.

As I read it, every report that is filed with the agency will be placed in a common database. However, paragraph (3) states:

“The Environment Agency shall … in the year following the year in which the reports are due to be provided under paragraph 1(n) … provide the Secretary of State with a copy of every report collated under paragraph (1) above”.

I wonder whether that means every report or whether it means the collation of the individual reports that have been submitted. Is it a summary or is it every report? If it is every report, my only comment is that if this information is in the public domain, we should be aware that it can be confidential; it is certainly commercially sensitive for those who are filing their reports. I would be grateful for the Minister’s observations on those points.

A table showing the targets for recycling is on page 34. The Minister has rightly drawn the attention of the Grand Committee to the success that we have had since 1997 in increasing the rates of recycling, and the role that business and industry has played. However, I am disappointed that the new targets leading up to 2010 are relatively modest. I am sure that the Government do not seek to be modest in their intentions, but I am disappointed that the figures are very low in terms of percentages. Take, for example, aluminium, which is a high-value product. We are recycling only 31 per cent of aluminium cans in this country, which is, I think, the lowest figure in Europe. Why are we expecting, even with effort and focus, to increase that by a modest 2.5 per cent from this year to 2010?

I, too, thank the Minister for introducing the regulations and the noble Lord for introducing some interesting and detailed questions on them. I shall range slightly more widely. I should start by saying that as the document is not a thin one—it is 50 pages long—it will contribute nicely to the recycling targets of your Lordships’ House in due course. But this is a serious matter.

These are amending regulations in many ways. They are the previous regulations from 2005 in a new form, with a certain number of changes, some of which are fairly minor but some of which are important. Particularly important is the ability of people to operate this system by electronic means; in other words, to submit data electronically and send in reports and information electronically. That in itself will help people to operate it more quickly, efficiently and cheaply. It closes some loopholes and reduces some of the burdens, and on that basis it is welcome. However, I should point out that it is about recovery and recycling targets. What it does not do is tackle the most fundamental problem of all—the quantity of packaging waste generated in the first place.

Despite the fact that the proportion of commercial packaging that is being recovered and recycled has gone up very significantly, having doubled since the original 1997 regulations came in so that it is now approaching possibly more than 60 per cent, which is excellent, the total quantity of waste is still going up. The figure I have is that, since 1999, packaging waste in the UK has risen by 12 per cent. Until we start to get at the origin of the waste, we shall not be tackling the problem.

Over-packaging remains a huge problem, as we all know. You only have to go to supermarkets to see the over-packaging of vegetables and fruit. Most ludicrous of all is the packaging of cucumbers, which come with the perfectly adequate natural package of their skin but which are nowadays invariably marketed in cling film. One could call them sheaths—but I am not sure what that would imply. However, electronic goods at the other end of the spectrum are getting smaller and smaller, while the boxes in which they come are not getting any smaller at all because the marketing of them is designed to make them look exciting, sexy and all the rest of it, whereas really they could be marketed in very much smaller boxes. In the days when I used to buy Hornby 00 railway engines and rolling stock, they came in boxes the size of the rolling stock, not in great big boxes with the thing in the middle. There is no reason at all why iPods and other things that I do not understand should not be marketed in the same way. So there is a lot of work to be done in that regard.

We must tackle these problems in a much more practical way. The Private Member’s Bill that my honourable friend Andrew Stunell presented yesterday or today would make it obligatory for supermarkets and similar shops to take back packaging that shoppers take and dump back on them. That is the kind of thing that we must do; we must make it possible for people to return the packaging to the places where it comes from so that those places would have to dispose of it, which would make them think much more carefully about what they package things in, because they would have to pay for it.

I found some interesting information in the Official Report of the House of Commons discussion in Committee on these regulations. My honourable friend Martin Horwood has dug out the fact that, under existing legislation, prosecutions for wasteful packaging are hardly ever made. Clearly, that is also a way in which producers and retailers could be made to look at packaging. According to his research, there have been only four prosecutions for wasteful packaging in recent years. Yet we know it is there. We all ought to encourage the trading standards departments of local authorities to take a more vigorous approach to this matter. Having said that, however, I do not wish to be too critical. This is a useful piece of delegated legislation, and it has our support.

I see that our future is being voted on now in the other place, so we will have to prove that we are doing a really useful job of scrutinising the Government. I thank the noble Lord, Lord Taylor of Holbeach. I have not been in Grand Committee with him before, so I am not certain whether this is his first appearance on the Front Bench. If it is, I congratulate him. He has been in the House for only five minutes, but he is obviously coming up the greasy pole quite fast. I have already heard him in debates in the Chamber, and I know that he brings a good deal of experience to the House. He asked about what is affected, and declared his interest. We do not decide; we are bound by the definitions in the directive, and they included plant pots.

I shall answer as many detailed questions as possible. Some may require a note from me, but I shall get through as many as possible. We do not know how many man hours were used by the Environment Agency, but I can find out. There have been a number of prosecutions, and the noble Lord, Lord Greaves, mentioned some of them. I am not sure whether he mentioned all of them, because sometimes prosecutions are brought not by the Environment Agency but by other bodies. Every effort is made to ensure compliance, and far more effort is now made than ever before.

The definition of a small producer is where the issue of the £2 million and the £5 million de minimis comes in. I have a list of 19 technical changes that do not include the electronic system that I shall come to in a moment. One of them states that the current definition of a small producer is a business that has a turnover of £5 million or less. That needs to be corrected to refer to a turnover of between £2 million and £5 million. Under paragraph 3 of the Schedule, a small producer must have a turnover of more than £2 million. That is where that de minimis comes in in the regulations. I do not know whether to apologise or not, because I assume that every word in these regulations is vital. These are large, detailed and technical regulations. If things are simple, the chances are that they will be unfair, so making the system fairer makes things complex.

The noble Lord could not find the reference to electronic means. Paragraph (5) states that a document may be provided by electronic means. The Environment Agency has put in place an electronic database for every port, and I understand that it aggregates the data for every quarter. I am pleased to say that I have not been on the receiving end because I am not the Minister for waste on a daily basis. It also provides aggregated data for the full year.

The noble Lord is quite right about metal waste, particularly aluminium. I recall from two recent PQs that aluminium can be constantly recycled. Recycling is enormously beneficial in saving energy, bearing in mind the massive energy used to get the aluminium from the bauxite in the first place. Our aims are to meet the business targets that are shown in the regulations and get the UK to meet its directive targets. There is a joint-metals target for steel and aluminium of 31.5 per cent by 2008. That sounds a very modest amount, but enormous amounts of materials are used.

The noble Lord also asked me about electronics and page 17. I am sorry; I wrote “page 17”, but did not write the question down.

Waste exporters will be required to provide details of the final destinations of shipments of waste overseas. This is intended to ensure compliance with the packaging waste directive, which requires that, when exporting to countries outside the European Union, an exporter must confirm that recovery or recycling at that site will be undertaken in conditions that are broadly equivalent to those prescribed by European Union legislation. It is illegal to export waste for landfill. I am not saying that that does not happen, but it is illegal. It is important that the final destination of the waste conforms to the standards we have in the European Union. That is checked. Visits are made to the sites—not a massive number, but I know from briefings for other questions that the Environment Agency and some local authorities have sent people, particularly to the Far East, to make sure that their waste is being dealt in an appropriate manner. That is a legitimate but expensive thing for them to do. It is part of making sure that we are operating in accordance with good environmental practice.

The noble Lord mentioned the complexity of the system. The size and detail of the regulations are consequences of that. These regulations came out of a consultation with industry. I understand there were 53 responses and that, by and large, they were strongly in favour of the proposals. I do not think there has been any dissent, because this is a complex issue. We want to reduce the burden, and only about 100 companies will be affected. Being able to use electronic means of transferring information will save a good deal of time. There will be an increase in the agency fee for this, as there always is. The increased fee proposed is fairly modest: an additional £26 for a large processor on an existing fee of £2,590, and £8 for individually registered producers on their current fee of £768. The additional funds will be ring-fenced and will be used solely to fund further development of the system for the benefit of users. They are not income. They are designed to recover costs.

I agree with virtually everything that the noble Lord, Lord Greaves, said, but important and valuable though his contributions were, they go a bit outside the scope of the regulations—he is nodding. My colleague in the department, Ben Bradshaw, the Minister of State responsible for waste policy, has given robust advice about what ordinary citizens can do at the supermarket checkout when they have been provided with far too much waste. He said that they should leave it at the checkout. I remember reading that that had been tested in eight supermarkets around the country and the responses of the supermarkets were reported, but I shall not go into that now.

The Advisory Committee on Packaging has set up an export taskforce that is examining the export market as a whole—where it is going, what happens to it and associated issues. There is far more work going on now than happened in the past because an enormous amount of waste has left the country and has been dumped in a bad or unsafe manner, and our job is to try to cut that out.

If there are other issues of detail that I have not answered, I am happy to write to the Committee.

I follow up my noble friend’s question on the recording of data and his concerns, raised in other spheres, over business sensitivity.

Frankly, I can deal with that without advice, but I shall take a nod or a shake from behind me. It is not our intention to breach commercial confidentiality and put businesses at risk by disclosing their plans. I presume that there must be, if not in the regulations then in the legislation supporting them, a measure on the recording of data. Data are aggregated, and there is no publication by company. Although we are down to only 100—the industry will know which 100 they are—there will be no disclosure of a company’s confidential information at all. That would not be appropriate under any circumstances.

On Question, Motion agreed to.

rose to move, That the Grand Committee do report to the House that it has considered the Environmental Offences (Use of Fixed Penalty Receipts) Regulations 2007.

The noble Lord said: I came with a fairly short and interesting speech. When I looked at the regulations and took advice, I worked out that I could do this in no more than two paragraphs, without doing the good people who have spent a long time on this a disservice. They agreed with me.

The regulations were originally made in April 2006. The only reason they are being remade now is to take account of the changes in the comprehensive performance assessment on categories for local government. The categories for unitary and county councils have been changed through the harder test—they used to be “excellent”, “good”, “fair” and “poor”—to a system of stars, from zero to four. That was introduced on 20 December for the eighth categorisation order—I am glad I did not have to do that one. District councils remain categorised under the old system, and both types of categorisation therefore appear in the regulations.

In other words, the sole purpose of this regulation is to convert the “excellent”, “good”, “fair” and “poor” system that was used for local government for enforcement offences and fixed-penalty notices, to the star categories of zero to four for county councils and unitary authorities. There is no change to the fixed penalties; more local authorities are operating them. Fixed-penalty notices are now up to about 38,000 a year, so there is more use of them as they do not involve a criminal offence. I beg to move.

Moved, That the Grand Committee do report to the House that it has considered the Environmental Offences (Use of Fixed Penalty Receipts) Regulations 2007. 8th Report from the Statutory Instruments Committee.—(Lord Rooker.)

I do not quite have two paragraphs, but I shall certainly be briefer than I was the last time. We, too, welcome the order. It encourages local action against issues that blight local communities: street litter, fly-tipping, graffiti, fly-posting and dog dirt. All are anti-social and need constant attention.

The regulations are particularly useful in that they engage and enable local authorities in the pursuit of clean neighbourhoods. They give them the opportunity not only to enforce the law on a number of anti-social activities, but to use the receipts of the fixed-penalty system for the further benefit of the community as a whole. However, I question the reasoning behind dividing local authorities into sheep and goats. The virtue of maintaining a clean environment is surely an objective in itself. It does not help to muddle that up with the quality control of local authorities, whether they have CPA star ratings or the designation of quality parish councils. These aspects are irrelevant to a local authority’s need or ability to use fixed-penalty receipt, as it will in what it sees as the community’s interest.

It is strange that Defra is discriminating against small parish councils who do not choose to qualify for the designation “quality”, as well as against other local authorities where use of the opportunities for which the regulations provide could otherwise be a positive way of working towards recovering their star status. This could be joined-up government, but why is Defra doing the dirty work of the Department for Communities and Local Government?

That is an interesting thought. I am grateful to the Minister for saying what it took me about three-quarters of an hour of scratching my head to work out what putting star ratings into the existing legislation was all about. To that extent, clearly we shall not complain about or oppose that because it has to be done.

On parish councils, are the provisions in the regulations exactly the same as they were in the previous system, or is the business about quality parish councils and so on new? That is a specific question, but I have a point of principle to make that is not really about the detail of these regulations and that refers to the point made by the Minister. Should local authorities be discriminated in favour of or against, according to their performance, when it comes to their powers to use the money that they raise? It is a matter of principle with which I do not agree. It is wrong to penalise those who, by the Government’s definition, are not performing as well. It would be far better to have systems of incentives rather than a big stick. Nevertheless, Defra doing the dirty work of the DCLG is not really a matter for further discussion today. The position is as it is, and it is absolutely right that the starred system should be in the legislation.

On the noble Lord’s point about parish councils, I understand that the regulations do not affect their position at all. There is no change. I take exception to the central point made by both noble Lords. I do not want to extend the debate, which I deliberately kept short, but freedoms and flexibilities offered to local government for increasing performance are a serious effort. Some 79 per cent of local authorities have three and four-star ratings. They know that such ratings give them much more freedom and flexibility without the heavy hand of government telling them what to do. The point is to raise standards. It is no stretch of the imagination to say that getting almost 80 per cent of local authorities to three and four-star ratings is a massive improvement on the situation a decade or more ago. There is no question about that.

That is part of the prize. If you are a well run local authority that meets all the standards, you will be inspected less frequently and have more freedom to do what you want with the money that comes your way. Our job is to get everybody raised, which is part carrot and part stick. It is not “discriminating” against local authorities—that is probably the wrong word; it is an effort to raise standards. So far, the evidence of the past few years is that standards have been raised. Local government should be congratulated for what is a success by any stretch of the imagination. The regulations do not change the policy; we have changed only the nomenclature of the words for stars. I hope that I have answered all the questions, but if I have not, no doubt I will be told about it.

On Question, Motion agreed to.

rose to move, That the Grand Committee do report to the House that it has considered the Local Electoral Administration and Registration Services (Scotland) Act 2006 (Consequential Provisions and Modifications) Order 2007.

The noble Lord said: First, I thank the Committee for agreeing to take these three election instruments together. This is well established practice and continues to make the best use of parliamentary time. The two orders are made under different sections of the Scotland Act 1998, and the regulations are made under the Representation of the People Act 1983. The Scottish Parliament (Elections etc.) Order is made under Sections 12(1) and 113 of the Scotland Act 1998, which allow for an order to be made for the conduct of elections for membership of the Scottish Parliament.

The order relating to local electoral administration is made under Section 104, which allows for necessary or expedient changes in consequence of an Act of the Scottish Parliament. The regulations are made under various powers and laid by virtue of Section 201(2) of the Representation of the People Act 1983. I hope that it is helpful to the Grand Committee to give a brief explanation of what the three instruments do, and I am very happy to answer any questions that noble Lords have.

The Local Electoral Administration and Registration Services (Scotland) Act 2006 (Consequential Provisions and Modifications) Order 2007 is made in consequence of the Local Electoral Administration and Registration Services (Scotland) Act 2006—an Act of the Scottish Parliament that received Royal Assent on 1 August 2006. The 2006 Act introduced an offence in Scotland related to fraudulent applications for postal or proxy votes, the penalty for which includes the offender being disqualified from standing in local government elections in Scotland for five years. The new offence introduced in Scotland mirrors that introduced for local government elections in England and Wales in the Electoral Administration Act 2006. The provisions of the Act of the Scottish Parliament, and disqualifications made under it, could not extend to elections for Westminster, the European and Scottish Parliaments or local government elections elsewhere in the United Kingdom, as this is outwith the Scottish Parliament’s legislative competence.

The Government and Scottish Executive believe that there should be co-operation to ensure that a coherent system of disqualification applies across the United Kingdom. This order will ensure that when a person has been convicted of the new offence and disqualified from standing at a local government election in Scotland, the disqualification will also apply to candidature in an election to Westminster. Under the terms of the Representation of the People Act 1983, when a person is disqualified from candidature to Westminster they are in turn disqualified from standing in elections to the European and Scottish Parliaments, the Northern Ireland and Welsh Assemblies and local government elections elsewhere in Great Britain.

The specific purpose of the order is to maintain a consistent scheme and to ensure that disqualifications made following misconduct at Scottish local government elections apply to other elections across the United Kingdom. The 2006 Act of the Scottish Parliament provided for the recognition in Scotland of similar disqualifications made at local and parliamentary elections elsewhere in the United Kingdom; the order provides further links in the chain against electoral fraud.

The second instrument before us is the Representation of the People (Scotland) (Amendment) Regulations 2007, to which I now turn. The House debated the Representation of the People (England and Wales) (Amendment) (No. 2) Regulations 2006 in October 2006. The regulations before the Committee mirror almost identically the regulations contained in the England and Wales version. There are separate regulations for Scotland to reflect different electoral arrangements; for example, the involvement of sheriff clerks in the retention of electoral documents. Otherwise, the regulations are very similar.

The regulations amend the Representation of the People (Scotland) Regulations 2001. The amendments flow from provisions in the Electoral Administration Act that introduce anonymous registration, alter certain aspects of absent voting, and improve certain administrative and procedural processes. Noble Lords will realise from my earlier comments that many of these amendments have been transferred into the Scottish Parliament order so that they may apply in May. I will therefore not repeat them here. The regulations apply the same amendments to UK Parliament elections in Scotland. Electoral practice is thereby consistent across the UK and Scottish parliamentary elections.

I therefore draw noble Lords’ attention to only some of the adaptations that have been made to the regulations to meet the Scottish context. Regulation 12 includes additional categories of qualifying officers in the case of those who can attest anonymous registrations to include chief social work officers in Scotland. We have removed certain references to “any election”, as this would intrude into devolved competence by picking up local government elections. References to the Local Government Act 2000, which does not extend to Scotland, have been removed. Scottish equivalents of those able to attest applications for proxy votes have also been added. Part 10 deals with the control of documents following an election. In Scotland, responsibility for the inspection and supply of documents rests with the relevant sheriff clerk. In England and Wales, it rests with the relevant registration officer.

Finally, I come to the Scottish Parliament (Elections etc.) Order 2007. I appreciate its enormous length. However, around 80 per cent of it is standard and reflects electoral law that has been in place for decades. It contains a replication of the rules that governed the last elections to the Scottish Parliament in 2003, but they have been updated in line with recent electoral primary legislation. The order also consolidates all rules and legislation governing the conduct of the Scottish Parliament elections in this one document to assist with their application.

The changes made in the order fall into two main categories. The first category includes changes that are a result of new measures introduced by the Electoral Administration Act 2006. The second category includes innovative changes that are being introduced for the elections this May; namely, the electronic counting of ballot papers and a single, combined ballot paper for the regional and constituency votes. I propose to summarise these key changes here.

The order introduces, and anticipates the introduction of, many of the new provisions made in the Electoral Administration Act, which received Royal Assent last July. One of the main aims of the Electoral Administration Act is to reduce levels of electoral fraud. Many of the new provisions to reduce fraud relate to postal voting. The declaration of identity has now been replaced with the postal-voting statement, which requires a postal voter to sign a statement confirming that they are the correct recipient of the ballot papers. The list of postal ballot papers is also required to be marked to show when the paper was issued and when it was received. A new provision is made to allow postal voters to confirm that their returned postal vote and postal-voting statement have been received.

Additionally, if a person applies for a postal vote to be sent to a different address from that shown on the record of absent voters, they will be required to indicate the reasons why circumstances require it to be sent there. This is to help prevent multiple papers being fraudulently sent to the same address. Provisions to register anonymously were introduced by the Electoral Administration Act. The order anticipates the introduction of this provision, which will come into force fully after May 2007. Voters will be able to apply to be placed on the register anonymously if their safety or that of a person in their household would be at risk if the register of electors contained their name or address.

Documents required by the order to be given to voters or displayed in any place can now be made available in Braille, in languages other than English, in graphical representations or by other means of making the information accessible to persons who might not otherwise have reasonable access to it. It also includes the information being made available in an appropriate, audible form. The deadline for registering to vote has been extended to 11 days before the date of poll. Under previous legislation, the closing date for registering to vote had been around six weeks prior to polling day, which gives people more time to register to vote in the election.

I thank the Minister for his explanation of the Government’s approach to these three measures. If I am not mistaken, we should have had a Motion stating that we wish to take all three measures together, but as we are all agreed on that point, it probably goes without saying.

I think the noble Duke will find that the Committee will take them separately, albeit that the last two Motions will be moved formally.

It would no doubt meet some of the curiosity of noble Lords as to why these measures are being considered at the eleventh hour if the Minister could give us a bit more information about the obstacles that had to be overcome in order to reach this point. We on these Benches have voiced our concerns about measures in the Electoral Administration Act, which was passed with the aim of modernising the electoral process. There is a danger that, in practice, they may compromise some of Britain’s traditional reputation for free and fair elections and undermine the integrity of the system and public confidence in our democracy.

The measures before the Committee today represent a tightening up of the possibilities for misrepresentation and fraud in some areas and for that we are grateful. I note that the Electoral Commission, along with our party, has been pressing for the use of personal identifiers to underpin the security and integrity of the electoral system. However, it appears at present that that is being considered for postal voting only. Can the Minister tell us what plans there are to try it out on a practical basis?

These regulations implement some of the changes made by the Electoral Administration Act 2006, among which was the system of anonymous registration. At first sight, it appears that this measure will largely be confined to postal voting. If it is not, can the Minister tell the Committee in what way the anonymous voter will be identified when he or she appears at the polling station? How anonymous will he or she then be? Does the Minister have any estimate of how many people are expected to avail themselves of this facility? A particularly curious element in the Explanatory Memorandum is point 7.11, which states that,

“returned postal ballot papers after they have been removed from their covering envelopes … should now be sorted face down”.

Which face is supposed to be down? I would be grateful for a bit more clarity on how the procedure will work. Would it not be easier if the postal ballot paper was like the normal ballot paper where the identification is one side of the paper and the vote is marked on the other?

The Scottish Parliament (Elections etc.) Order 2007 brings together all the measures that are required for running an election, which is a splendid move by the Government. As the Minister mentioned, this order has obviously considerably exercised the minds of noble Lords on the Merits Committee. The Minister drew our attention to the appendix to the Merits Committee’s ninth report, which I had not picked up on as I was looking at it only yesterday. Even in their initial response, the members of the Merits Committee developed an argument that appears to make this exception acceptable. But the measure will be taken forward under the legal systems of the European Union and Scotland and may possibly be referred under the third system of the legal system of the United Kingdom. What assurance can the Government give us that in the days after the election the outcome will not be taken to the courts by some dissatisfied person and the whole election then put into some kind of limbo?

In trying to get some understanding of the problems that exist and which the Government have had to deal with, could the Minister explain to the Committee whether removing the prohibition on participation on voting by those who are defined as having the “legal incapacity to vote” will require a change in the franchise regulations? The Committee is no doubt aware that under Section 12 of the Scotland Act the Secretary of State has power to make provision about elections, but under Section 11 he has no power to alter the categories of people entitled to vote. Is that why the Government have been forced to present this statutory instrument with the strange admission that it does not comply with Section 61 of the Human Rights Act? What steps do the Government expect to take to overcome that situation and when will they do so?

I am grateful to the Minister for presenting us with copies of the voting paper, which I find a delightful curio. If it was not for my enjoyment in addressing your Lordships, I could be at a meeting of the Commonwealth Parliamentary Association, which is dealing with the 50th anniversary of the independence of Ghana and Kwame Nkrumah and pan-Africanism. To show my age slightly, I was in Ghana when that first election took place and a great novelty was the inclusion of pictorial representations. It was felt that the locals in Ghana, who speak three different languages and could possibly neither read nor write, could identify their parties much better in that way. Kwame Nkrumah’s party was identified by a crowing cockerel—and if I remember rightly, I think that the party was known as the NCP. It is interesting that 50 years pass and these things come around—and here we are, using them with great aplomb in the Scottish elections.

Scottish Conservatives support reforming voting procedures to improve the integrity of the electoral system and we support the majority of the measures proposed, including anonymous registration and improvements to procedural measures. I am still slightly puzzled about the limits on the incorporation of commonly used names. I have no doubt that some gentleman called Screaming Lord Sutch might put his name forward as what he would wish to be known as on voting. We also support confirmation of the receipt of postal votes, as it is currently a lottery as to whose vote has been included, and there is no checking process.

The Minister said that he expected that electronic counting would be put into use at the May elections, but are the Government satisfied that the operators have sufficient skills and resources to carry it out? If that is the intended method for future elections, what is the expected cost of delivering it in Scotland?

There is one provision in the measure which sounds like an immensely efficient tidying-up process for the administrators of the election—the substitution of counterfoils by the corresponding number list. When you vote, your name will be put on the list against the corresponding number, as far as I understand; in the nature of things, that list will eventually become available under the Freedom of Information Act. Does the Minister not agree that, because that simplifies the situation so much, it also dilutes one of the prime attributes of our system—the secrecy of the ballot? A small amount of that might be restored if we progress down the path of personal identifiers. In that case, if voters wished to appear at the polling station with their personal identifier, it could then be what appeared against the number list, which might make the traceability of their vote that much more confidential.

Finally, the Scots currently enjoy the delight of four different voting systems. Of course, my party has benefited from that. The new system that this measure introduces is the single transferable vote, which is to be used for local elections. It could be argued whether the measure is suitable for that level of government. The Scottish Conservatives continue to believe that first past the post is the best electoral system at other levels, providing a clear and direct link between the voters and their elected representative, and ensuring that the voters, not the politicians, decide who governs.

I shall resist the temptation to tease the noble Duke about the fact that he is an expert on ballot papers when I do not think his name has ever appeared on one. I shall return to ballot papers in a minute and make four brief points about these regulations, which my party welcomes on the whole. The first is the question of prisoners voting. Why has this matter remained unresolved when the European Court came to its decision in October 2005? The issue was live even before that because some people saw it coming down the track. Indeed, the noble Lord, Lord Hurd, a former Home Secretary, is one of an all-party group that supports a campaign by the Prison Reform Trust and the ex-offenders’ organisation Unlock to give prisoners the right to vote. In April 2005, almost two years ago, the former Chief Inspector of Prisons in Scotland, Mr Fairweather, made the point that:

“We say to prisoners, we’re preparing you to be more responsible when you come back out and then in the same breath if you say you can’t vote then we sound a bit hypocritical”.

It was a live issue before the European Court came to its decision. Yet we had to wait 14 months after that decision before the Government even issued a consultation document in December 2006; and the consultation closes today or tomorrow. Why the delay? It is unnecessary to produce an order when the Merits Committee has drawn the attention of both Houses of Parliament to it on the grounds that it makes an unusual and unexpected use of the powers conferred by Section 12 of the Scotland Act. That is a polite parliamentary way of saying that the Minister is chancing his arm—not this Minister, I hasten to say. The Government are chancing their arm as it is contrary to the court decision. I want to know why this has been so long delayed. Now that the consultation period is closed, is the Minister able to give the Committee any indication of how long it will be before this matter is resolved so that we do not have a repeat in future elections of orders that run counter to the European Convention on Human Rights?

The second issue I wish to raise is about ballot papers. Like the noble Duke, I am entranced by the exotic paper. It is an improvement to have one paper instead of two, as we had in previous elections. If my recollection serves me right, however, when we had two separate ballot papers the party ballot paper had the names of the candidates nominated by the parties. They seem to have disappeared, so when somebody goes to a polling station, will he have factual information about who is being nominated by the parties before he gets into the booth to put his cross? Otherwise, the candidates remain anonymous on the left-hand side of the ballot paper. I welcome the use of the symbols. When I first came into politics, there were no party labels on ballot papers, simply names. There was a very good reason for that, which was that we were elected to serve a particular constituency and your party was irrelevant because once you were elected you served everybody. That was the theory. At a later date, it was the general view of the House of Commons that it was for the benefit of the electors to have the party label. I do not dispute that. There was a change, and the party labels started to appear.

I am all in favour of the symbols and party labels appearing, but I now read in the press that there are attempts to sloganeer on the ballot paper. That is an abuse of the ballot paper. We are told that the Scottish National Party is not happy to have “the Scottish National Party” listed on the ballot paper, but want something like “Alex Salmond for Top of the Pops”. That is quite wrong. I hope that, if not these regulations, then future ones will be more tightly drawn to prevent that abuse of the ballot paper.

Thirdly, on the actual franchise, I had an interesting experience. I am a registered local government elector in London by virtue of the rented flat I occupy. I pay council tax to Westminster City Council and therefore have a vote as to who my councillor is; well, I had, but I have given up the flat. I did, however, have a local government vote in Edinburgh by virtue of the small flat I own there and which I occupied when I was presiding officer of the Scottish Parliament. My name has been removed from the register, and I questioned this with the registration officer. He is correct. He said that it depends on the rate of occupancy of the flat, and I am obviously not now occupying it as I did. That raises a difficult question, however. Why should we have taxation without representation? I pay council tax in Edinburgh. There are issues around my flat which concern me and about which I have been in touch with my local council. Yet, I have no opportunity to vote and choose who my local councillor is. Perhaps that ought to be examined in the future.

Finally, I am sure that electronic counting is an advance. Like the noble Duke, however, I have some lingering doubts, stemming from my experience of observing election counts in other countries. In countries where computer systems are used, they have been greatly suspect. I am not for one second saying that they would be suspect in Scotland, but they are less transparent than the manual system of counting. Can the Minister give us any more indication of how electronic counting would work, how we are protected against system breakdowns and whether there is a fall-back position for manual counting?

I am interested in the question of the noble Lord, Lord Steel, about electronic counting. The electronic system is absolutely imperative for the local government elections in Scotland, because no human being would be able to do the calculations in time.

Oh yes we could.

That has something to do with the Scottish Parliament, but that is by the way.

On what the noble Lord, Lord Steel, said about the naming of the parties, I, too, read in the press that parties can call themselves anything they like and have more than one name. I do not know if that is correct; perhaps the Minister can confirm it. If so, my understanding was that the Scottish National Party’s intention was to use different names in different areas, according to what suited them electorally. It would be interesting to know if that is possible. If it is, how would it affect the framework for the ballot paper that the Government have kindly let us see? The left-hand column of the paper will simply give the party. I, too, was surprised that we have lost the names of the candidates. I am not sure if that has been a deliberate change. Where it gives the name of the party—let us suppose it says the Alex Salmond party—will the same party be on the right-hand side of the ballot paper? Does it have to be? Will it be the same name in all the regions of Scotland, or could there be different ones? The regional Members’ list concerns only the region of Scotland where the number of votes are counted to see who the list members will be. Could one region have the Alex Salmond party, another the Scottish National Party and another the “division of the United Kingdom” party, or something like that, according to how people in the area feel? It will be interesting to know whether there has to be consistency in the regions on the ballot paper itself. It is unfortunate that you can do that in law. I think I detected from my reading that previous legislation allows that. It is not in this order so we can do nothing about it, but it seems a mistake. I should have thought that a party should have one name and should proclaim it loud and clear so that people know exactly what they are doing.

I was not going to intervene on these Scottish matters, but I agree substantially with everything that my noble friend said. I give him my full support, as ever.

I rise because there are other people alive today who share my horror at the way in which political slogans are now put on ballot papers. I thought that I was the only person in the world who objected to that; I have raised the matter with the Minister before. Political parties can now register however many versions of their name—the Minister will tell us, but I think it is 10 or a dozen. They can use any of them in any circumstances in different wards in the same authority, for example. They are all at it, including my own party, so perhaps my noble friend Lord Steel will join me in a Liberal Democrat campaign to stop it. Two mayoral elections ago the Liberal Democrats stood as something like “Liberal Democrats against Privatisation of the Tube”. That is wrong. Names of political parties are their names, and we should not be using ballot papers as political standards.

As the noble Duke said, Scotland is going to the polls on 3 May with three different electoral systems on the same day. The first past the post system will be used for the constituencies of the Parliament; a top-up form of proportional representation by lists will be used for the regional Members of the Parliament; and, something that we never thought we would see on the British mainland again, there will be the single transferable vote—a delightful system—for the local authority elections in Scotland.

Some time in past history the Government, from whichever department it was then, set up an inquiry into electoral systems, which has been looking at the different electoral systems for the European elections, the Scottish Parliament and the Welsh Assembly. Since we are told that the inquiry is still going along—not very fast, but it is still deliberating—will it include this year’s Scottish elections? In particular, will it include an investigation and a study of the single transferable vote in the council elections as part of that inquiry? The Minister may not be able to tell me now, but perhaps he will write to me.

I have been asked 19 questions, and it is a credit to officials from the Scotland Office sitting behind me that I have answers for 18 of them. Ten of them were asked by the noble Duke, the Duke of Montrose, who may never have voted but as always he is good at asking a whole lot of detailed questions.

I have been on a ballot paper.

Right. Question number one from the noble Duke: why has there been such a lack of time for consideration? We were unable to lay the instrument before the Committee any earlier. To allow us to include Schedule 5, “Combination of Polls”, in the order we had to wait until after the local government election rules had been made in the Scottish Parliament on 1 February.

The noble Duke asked about personal identities being inconsistent with England and Wales where other changes are also being introduced. We are keen to remain consistent with England and Wales and will commence this provision for Scotland after May. We felt that already a number of significant changes were being introduced for electoral administrators in May, including the introduction of electronic counting and the single transferable vote for the local government elections to be held on the same day as the Scottish Parliament. That is why they will not be introduced until after May.

The noble Duke also asked about the number of anonymous registrations. We have no knowledge of how many people will avail themselves of the right to register anonymously, but we will monitor the numbers after the provision comes into effect in June. He also asked how anonymous registrants will vote at polling stations. The voter at the polling station will be identified by poll card, which the voter will need to take to show to the presiding officer.

The noble Duke asked what it means when we say that the sorting papers should be face down. It means that the front of the paper on which you cast your vote goes face down. He asked what the Government are doing about incompatibility with the ECHR. The Government’s consultation paper was issued on 14 December with a 12-week deadline for comments. As signalled in the foreword by the Lord Chancellor, the Government wish to launch a debate on how best to implement the Grand Chamber judgment in the Hirst case, which required a review of the current blanket ban on prisoners’ rights to vote. The responses to the consultation, which, as the noble Lord, Lord Steel, told us, closed today, will be analysed and, if appropriate, drafting of phase 2 consultation will occur between April and June 2007. The response paper for the phase 1 consultation completed on 7 March is expected to be published in June 2007. The noble Duke also asked whether elections would be put in limbo by an ECHR challenge. The answer is no: the elections will proceed in May as planned. He also asked whether there would be a limit on commonly used names. It refers to a commonly used name defined in legislation and there is no prescription on what that should be.

My issue on the challenge and the ECHR was not that it would stop the election; it was that the challenge would come after the election. A number of people might challenge their inability to vote, which might change the result. Would that mean a breakdown in the progress from the election?

I am advised that we do not feel that there is any danger in that happening.

That is not an answer.

It is the only answer Members of the Committee will get today. I will write to the noble Baroness if she can tell me exactly her concern.

My noble friend suggested that the outcome might be affected by the fact that prisoners had not voted, which is possible. We need to know the answer. Could the fact that prisoners have not voted put the result of the election in limbo? It is a straight question and not a question of whether or not it might happen.

The straight answer is no, it could not happen, because what we are proposing is not an illegal action.

I am grateful to hear that from the Minister. The question is whether a whole bunch of smart lawyers would also consider that it was not an illegal action; they might raise a case.

Another point is that the election cannot be illegal as prisoners are not eligible to vote.

To turn to the noble Duke’s ninth question, he asked what confidence we had in electronic counting. The electronic counting system has been independently verified; the same system is used in GLA elections and comprehensive training and guidance are provided to electoral administrators.

Finally—or not quite finally, because there are 11 questions—the noble Duke asked how much e-counting would cost. It is difficult to be precise because some costs will not be known until after the count has concluded and accounts are submitted to the Scotland Office. At this time, however, we estimate the costs at around £4.7 million.

The noble Duke asked whether the corresponding number list would be publicly available. The answer is no; rule 71 prevents public inspection of the list and keeps ballot papers confidential, unless a court wishes to inspect them.

I move on to the questions asked by the noble Lord, Lord Steel. He asked why it had taken so long to issue the consultation paper. It is on a complex and controversial area that required full consideration within government. I can confirm that statements made by David Cairns in press and media after the declaration of incompatibility judgment reflect accurately the Government’s view. The Government are not persuaded that lifting the blanket ban on prisoners is the best way forward in these circumstances, but we must take account of the European judgment and initiate a public debate and reflection on the present position.

I was asked why the JCSI’s report on the order highlights that it represents an unexpected and unusual use of power under Section 12 of the Scotland Act. The JCSI brought to Parliament’s attention that the order contains certain provisions that carry forward the blanket ban on prisoners voting contained in the Representation of the People Act 1983, which had been judged to be not ECHR compliant. The view of the JCSI is that Parliament would normally expect that the power to make any subordinate legislation would be exercised in a way that is compatible with the ECHR. It is, therefore, unexpected that this order is being exercised in this way. However, the JCSI has also indicated that it does not think the provisions of the order are unlawful.

The noble Lord, Lord Steel, asked about the ballot paper and whether the names of nominated regional candidates will be displayed in polling stations. Details of all regional candidates will be clearly displayed in the polling stations. The lists will also be sent to all postal voters with their postal ballot papers.

The noble Lord also asked about multi-party descriptions and whether, for example, Alex Salmond’s name could be used on ballot papers that were not for the constituency in which he was standing. That would be possible as long as the description used on the ballot papers was one of the 12 descriptions registered by the party. However, it would appear as the party description and not the candidate’s name.

I am sure that what the Minister said is factually absolutely correct, but my complaint, and that of my noble friend, is that the registration process ought to be looked at again. I hope that the Minister will draw that to the attention of those responsible for the registration process because once that is done I accept that it has to be on the ballot paper. It is questionable whether this practice should go on.

We will be very happy to draw the noble Lord’s concerns to the attention of the relevant people.

On the question of the eligibility to vote in local government elections, registration officers make decisions on who is entitled to be on the register based on the information received. We are introducing the co-ordinated register of electors to assist in future with a UK-wide approach to registering eligible voters.

I have already dealt with confidence in the electronic counting system. I was asked whether we can use manual counting as a fallback. The electronic system has been independently verified and tested, and a manual count can be used if the electronic system fails.

At the moment, there is one question that we are unable to answer. It came from the noble Baroness, Lady Carnegy of Lour, and I shall write to her on whether the different descriptions of parties have to be consistent between the regions and between the constituency and regional lists. I will send a copy of that letter to all noble Lords who have taken part in this debate.

The noble Lord, Lord Greaves, is right that parties can register up to 12 descriptions with the Electoral Commission.

I was asked when the Government will provide the results of their voting systems review. Discussions are continuing within government in preparation for the review. No decision has yet been taken regarding timing for conducting it.

I was really asking whether the review will take account of the current crop of elections as well as of elections in the past. Will they be new evidence for the inquiry to look at?

We do not know and will have to write in answer to that question. I think I have answered all the questions—

My noble friend asked about what happens when an anonymous voter goes to vote and the Minister said that he has to take his polling card with him. Will he be told that he has to? At the moment, when one votes, one does not have to take one’s polling card. Lots of people think that they have to and produce them, but one does not have to. At the moment, there is no personal identifier system, so will that person be told and if so, when? Will it be when it is agreed that he can be an anonymous voter? That is important.

I can confirm that he will be told when he is sent the postal vote.

On Question, Motion agreed to.

I beg to move the Motion standing in my name on the Order Paper.

Moved, That the Grand Committee do report to the House that it has considered the Representation of the People (Scotland) (Amendment) Regulations 2007. 9th Report from the Statutory Instruments Committee.—(Lord Evans of Temple Guiting.)

On Question, Motion agreed to.

I beg to move the Motion standing in my name on the Order Paper.

Moved, That the Grand Committee do report to the House that it has considered the Scottish Parliament (Elections etc.) Order 2007. 9th Report from the Statutory Instruments Committee.—(Lord Evans of Temple Guiting.)

On Question, Motion agreed to.

The Committee adjourned at 6.59 pm.